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June 27, 2011

Interesting commentary on the comments here at SL&P

Over at Crime & Consequences, Bill Otis has this interesting lengthy post commenting on the nature of comments here at SL&P.  Here are excerpts:

I frequently comment at Sentencing Law and Policy because, among other reasons, I like to keep my finger on the pulse of what the other side is thinking.... The commenters are something else.  Some are anti-American hotheads.  Some are ex-cons.  Some are defense counsel, who can range from snark specialists to extremely thoughtful and fair-minded people.  A few are conservatives and/or libertarians....

I have found some common blind spots that recur on the Left no matter what the topic. Right now I want to talk about three of them.  They are the failure fully to understand that (1) every act of government, in law enforcement and otherwise, costs money; (2) every institution of government is unavoidably fallible, because human beings are unavoidably fallible; and (3) everything in life involves trade-off's, often painful ones.

I want to emphasize what an appreciation of these errors, taken together, means, to wit, that it's frivolous for our opponents to engage in blinkered sloganeering and think they've made an "argument."  For example, to bullhorn constantly about the costs of X, without being candid about what X achieves, or the costs the alternative to X is likely to create, is unpersuasive and dishonest.

Even more than dishonest, it is, I have come to believe, childlike -- not in the sense of charming or innocent, but in the sense of bedazzlement with things that sparkle combined with disinterest in things that don't, but are equally or more important to the task at hand. The juvenile quality of Leftist thinking, perhaps more than anything else, is what makes it consistently untrustworthy in matters of consequence.

There are a number of topics current in criminal law: Drug legalization, the big price tag for incarceration, and the costs of the death penalty.  The errors I have described are rampant in the Left's analysis of all three.

Let's start with the costs of the death penalty.  We hear that it costs a lot to litigate a capital case, and it does.  What we don't hear about is the trade-off, i.e., the costs saved by resolving murder cases with a guilty plea brought about in part by the threat of the death penalty if the case goes to trial.  We also don't hear about the significant extra costs it will take to house (and, in his elder years, provide medical care for) a (say) 30 year-old killer of the especially ruthless or conscienceless kind -- the kind who are most likley to find themselves in a capital prosecution....

Now let's talk about the costs of incarceration.  Again, they are substantial, and they've been growing significantly over the last 25 years or so.  It's easy to illustrate how, if we just release inmates, we save dollars.  And we save those dollars now, in time, shall we say, for the next election.  But what's the never-mentioned trade-off?

Well, first, there's justice.  These people were not in prison for no reason.  To release them prematurely is to give them a parole they had yet to earn.  Second, there's increased crime.  The incidence of recidivism is not zero.  Indeed it's way, way above zero.  When we release inmates early, we are sentencing innocent and unsuspecting people to be crime victims.  The difference, of course, is that the number and identity of those victims is not yet known.  These facts are therefore easy for politicians to sweep under the rug, even as they hold a smiley-faced press conference to announce that -- see there! -- we're saving the taxpayers X number of dollars next year.

Unmentioned are the human and financial costs of the additional crime they have made inevitable.  And if any of the release-them-now crowd pushing for this solution has ever said that, well, we should make some effort to at least keep track of the coming, increased crime-related costs -- so we can re-visit the cost question with more information -- I never heard of it.

There is a good deal more to say on this question, and I'm afraid I might have promised more than I have delivered right now, anyway, but I wanted to get these thoughts down.  I'll have more to say later.  But the three analytical errors I mentioned are so pervasive that I wanted to get this on the table now.

I am greatly appreciative of Bill Otis's history of service to criminal justice law and policy and also his engagement on this forum.  But this extended discussion highlights for me that Bill's thinking is often subject to the very same "childlike" problems and "blind spots" he assails.  Let me give a few examples.

Bill claims he has "never heard of" efforts to track "increased crime-related costs" of early prison releases.  It seems, then, that Bill is blind to the fact that the US Sentencing Commission has studiously kept track of recidivism rates of those released early under the 2007 lower crack guidelines (details here), and that the folks at Pew have been doing broad evidence-based assessments of recidivism rates nationwide (details here).  I share Bill's instinct that we should have more evidence-based analysis of many crime and punishment issues, but I dispute his suggestion that all advocates of reform are eager to avoid serious examination of cost-benefit realities.

Even more fundamentally, Bill (eagerly?) overlooks how the Left's approach to many criminal justice matters is driven by a deep understanding that "every institution of government is unavoidably fallible, because human beings are unavoidably fallible."  This is most obvious in the death penalty debate, where many abolitionists say that because we can never be sure the criminal justice system will always get it right, this system should never terminate life.  I personally do not find this argument convincing, but it is very much based on the essential belief that the death penalty is a bad idea precisely because "every institution of government is unavoidably fallible."

This fallible reality also often informs advocacy for prison reform and is critically missing in Bill's understanding of support for reductions in incarceration.  Bill, in a childlike and blind way, seemingly believes "justice" is always achieved by keeping folks in prison because they "are not in prison for no reason [and] releas[ing] them prematurely is to give them a parole they had yet to earn."  But whether we are considering extreme crack sentences some other too-long nonviolent sentencing terms (like those given, say, to Scooter Libby), what about the possibility that the original prison terms are unjust, reflecting a fallible criminal justice system that often will over-punish in the heat of the latest crime concern?

I throw out Scooter Libby as a telling example because Bill Otis obviously appreciated the societal value of early prison release when he forcefully and successfully advocated for presidential commutation of Libby's prison term following his perjury convictions.  Bill seems blind to the possibility that many on the Left believe that, among the 2.3 million people in prison, there are a lot more folks like Libby who could and should be safely released early to the benefit of both these offenders and society itself. 

I hope that when Bill has "more to say later" he will explain why his advocacy for Libby's early release is distinct from comparable advocacy by those on the Left whom his clearly disdains.

June 27, 2011 at 10:14 AM | Permalink


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Doug --

Thank you very much for posting excepts from this piece. Having given me so much space, modesty counsels that I refrain from taking more, at least at the moment, and allow your readers to make their own assessment, as they may wish (or not).

I will say only very little just now.

Libby was an extremely unusual case -- a 56 year-old first offender, convicted of a non-violent and non-drug related offense not undertaken for personal profit, with an extensive history of government service and a more substantial attestation of his good character and works than I had ever seen in 18 years as an AUSA. A partial commutation -- which was all I proposed -- seemed (and to me still seems) apt in such an unusual case. And it differs in obvious ways from seeking blanket leniency is a class of cases, such as all crack defendants.

Just a clarification: I do not "disdain" all those on the Left. The best man at my wedding was a Marxist when I met him in law school. And, as I said in the entry, some of your left-leaning commenters strike me as intelligent, thoughtful and fair-minded people.

What I do disdain is a way of thinking, about law, politics or anything important, that continuously touts the advantages of X while remaining silent or quite muted about its disadvantages, and that gives no fair accounting of the reasons the status quo got to be the way it is, and what advantages we will forfeit if we change it.

There is more to say, of course, but as I noted, it's probably time -- as my father said repeatedly -- to give my ears a chance.

Again, thank you for bringing attention to this piece.

Posted by: Bill Otis | Jun 27, 2011 12:58:01 PM

Viewed from abroad I miss Separation of Powers. As long as whatever justice system caters the Prison Industrial Complex we must not assume trend since 25 to 30 years will change soon.

Posted by: Franz Kurz | Jun 27, 2011 1:01:58 PM

I understand your perspective on Libby, Bill, but you seem to have a "blind spot" as to this perspective's its import and implications for other kinds of federal defendants --- such as those impacted by the old crack guidelines.

You plainly concluded justice was NOT served by the within-guideline sentence imposed in Libby's case and still see it as "apt" for him to get, essentially, a special "get out of a federal prison term" commutation gift from the US Prez. And though one might rail about the harms resulting from perceptions of "special" favors for the rich and politically connected, you apparently continue to see only the benefits (and no harms?) from Prez Bush taking your advice to release Libby without him having to serve a day in prison even though he had not been sentenced to "prison for no reason" and even though "releas[ing him] prematurely" was a windfall, not something he earned. (And, in my view, US veteran Victor Rita was just as deserving of this kind of break for a similar kind of crime, and yet I cannot recall you caring to write an op-ed on his behalf.)

Turning to federal crack sentencing, one might now reasonably say that CONGRESS has now through the FSA plainly concluded justice was NOT served by the within-guideline sentence imposed in crack cases under the old guidelines and thus now it is apt AND just for unjustly sentenced individuals to get the benefit of what Congress now clearly thinks is more fair. Advocates for reform of crack sentencing have long said the status quo of extreme crack sentences are the result of undue hysteria about unique crack harms in the mid-1980s and that reform would mean greater justice and greater perception of justice.

The fact that you run the cost-benefit calculation differently than others, Bill, does not mean that others are not engaged in cost-benefit calculations. And, what I think troubles many is that when a prominent wealthy criminal whom you respect and find sympathetic --- like Mr. Scooter Libby --- your cost-benefit analysis favors cutting this criminal a special break from any prison term. But when a poor person gets hammered for a long crack term --- like Ms. Hamedah Hasan --- you complain that folks on the left are not balancing what you see as big costs against the benefits of cutting the defendant a break.

I suspect/fear that your coming comments on drug legalization will be similar in kind -- with a one-sided view of which costs and which benefits should count the most. I am not accusing you of mis-guided bias, Bill, but rather suggesting that you are subject to the same advocacy skew and blind spots that you see in the other side. And this is especially why I am so eager to have you in this forum talking about your views and your views of others' views.

Posted by: Doug B. | Jun 27, 2011 1:46:51 PM

Thanks for the point/counterpoint, Doug

Posted by: Benson Weintraub | Jun 27, 2011 3:53:04 PM

Doug --

Again I thank you for your interest in what I have called "The Terms of the Debate." In my view, it was a long overdue subject.

Let me try to provide answers to some of your points.

-- "You plainly concluded justice was NOT served by the within-guideline sentence imposed in Libby's case and still see it as "apt" for him to get, essentially, a special "get out of a federal prison term" commutation gift from the US Prez."

Correct. On the other hand, I never opposed all departures; indeed, in my article in Engage, I applauded the early guidelines practice in which 20% of sentences were departures, almost all of them downward. In a given case, such as Libby's, where I thought a departure was warranted, but it was not given, the accepted alternative is Executive clemency.

Our mutual acquaintance, Margy Love, debated me on PBS about Libby and did not disagree that leniency was warranted in his case; her point, like yours, is that it is warranted in others too.

Finally on this point, many generally on my side politically thought I did not go far enough, and that I should have pushed for a full pardon. But, precisely because I DID weigh the competing factors (and not wanting to be, as it were, child-like), it was my view that the offense of conviction, perjury, was too serious to warrant a complete recission of the sentence.

"And though one might rail about the harms resulting from perceptions of "special" favors for the rich and politically connected..."

The social and economic standing of defendants did not affect my decisions as an AUSA, and they didn't with Libby either.

"...you apparently continue to see only the benefits (and no harms?) from Prez Bush taking your advice to release Libby..."

Please see my first point. Obviously there are harms, but I view them mostly as harms of perception. Substantive justice comes first, to my way of thinking. On the overall record, Libby did not belong in jail.

"...without him having to serve a day in prison even though he had not been sentenced to "prison for no reason" and even though "releas[ing him] prematurely" was a windfall, not something he earned."

Executive clemency is virtually ALWAYS a windfall -- not something that is earned, certainly not in the strict sense.

"(And, in my view, US veteran Victor Rita was just as deserving of this kind of break for a similar kind of crime, and yet I cannot recall you caring to write an op-ed on his behalf.)"

That's right, I didn't. On the other hand, you didn't write op-eds for what are undoubtedly dozens of defendants, for drug and numerous other kinds of offenses, who overall are as worthy. This is not because you are a hypocrite. It's because you don't have infinite time, attention and resources. Me neither.

-- "Turning to federal crack sentencing, one might now reasonably say that CONGRESS has now through the FSA plainly concluded justice was NOT served by the within-guideline sentence imposed in crack cases under the old guidelines and thus now it is apt AND just for unjustly sentenced individuals to get the benefit of what Congress now clearly thinks is more fair."

But I do not agree with that judgment, at least in as broad a form as Congress passed it.

-- "The fact that you run the cost-benefit calculation differently than others, Bill, does not mean that others are not engaged in cost-benefit calculations."

Perhaps some are. Perhaps MANY are. But all manner of articles posted here and elsewhere -- not to mention the commentary, which is what I was referring to -- contain little or no such analysis. Some of it is pure snark, some is, "The problem is that America is a racist pit," and a good deal is more indignation than analysis. Few and far between are commenters about crack who so much as acknowledge that early release will produce more crime, still less make any serious attempt to estimate how much, and what its costs will be.

-- "And, what I think troubles many is that when a prominent wealthy criminal whom you respect and find sympathetic --- like Mr. Scooter Libby --- your cost-benefit analysis favors cutting this criminal a special break from any prison term."

I knew when the Post published the op-ed that I would be accused simply of favoring rich and prominent people. I similarly know that when I vigorously support the DP I will be accused of being a bloodluster (and worse). Indeed, there are some commenters who almost never address the subject at hand and simply write snark and innuendo about what a jerk/thug/criminal I am.

When you are a conservative, in academia and the blog media, you learn to accept this stuff as the price of doing business. My conscience is absolutely clear about my take on Libby. If any other defendant had an identical record, I would make the identical recommendation.

"But when a poor person gets hammered for a long crack term --- like Ms. Hamedah Hasan --- you complain that folks on the left are not balancing what you see as big costs against the benefits of cutting the defendant a break."

Both your description of my criticism, and the criticism itself, are true. I would say that my penchant to acknowledge costs and benefits exceeds that of most commenters. Quite a few of them never make even an effort.

"I suspect/fear that your coming comments on drug legalization will be similar in kind -- with a one-sided view of which costs and which benefits should count the most."

Stay tuned. When I get to that one, I will bear in mind your caution.

Posted by: Bill Otis | Jun 27, 2011 4:19:09 PM

He's at least in part your Frankenstein, professor.

Enjoy living with it.

Posted by: anon | Jun 27, 2011 4:34:33 PM

I guess we need to add "Frankenstein" to the list. At least it's not innuendo.

Posted by: Bill Otis | Jun 27, 2011 4:41:24 PM


Cost benefit analyses often turn on recidivism rates. The Sentencing Commission has determined that the two year recidivism rate for early release crack offenders was approximately 31%. Moreover, the rearrest rate climbed markedly as time went on. The three year rate would probably be higher still.

While the Commission seems to trumpet the fact that the recidivism rate was statistically insignificant from those released by normal expiration of sentence, the point is that early releases do in fact negatively impact public safety. This is meritorious concern and one often soft-pedaled by many of your commenters.

Posted by: mjs | Jun 27, 2011 5:57:10 PM

but... if you want to put an optimists spin on that two year data that also says almost 70% did not re-offend during that timeline. Those numbers probably also don't take into account that no rehabilitation was probably attemopted while in custody either.

Posted by: james | Jun 27, 2011 6:26:14 PM

mjs --

Thank you for providing specifics in an area where I came up short. As you note, the bottom line is that early release means more crime. More crime means more crime victims, with the human suffering and financial costs crime creates. This is exactly what so many commenters either dismiss or refuse even to acknowledge.

P.S. Since I'm Frankenstein, maybe you should audition for Wolf Man.

Posted by: Bill Otis | Jun 27, 2011 6:29:32 PM


Do you think that Doug should limit posts to persons that have views similar to his?

Posted by: John Neff | Jun 27, 2011 7:09:33 PM

I want to comment just briefly on recidivism. There is some likelihood that almost anybody will commit a crime. No on can predict with complete accuracy whether a specific offender will commit another crime. The best that can be done is to predict the probability of recidivism as to a given person; e.g., 70 people with like characteristics out of 100 over a two year period. Of course this calculation has to estimate the probability of committing a particular kind of crime, which makes a difference to the cost-benefit ratio.

This means that policy makers must decide how much risk is tolerable. There will always be some risk of recidivism regardless of when that person is released. There is very little evidence that length of stay has much to do with a persons risk.

Posted by: Tom McGee | Jun 27, 2011 7:19:53 PM

Tom McGee --

Your approach is sensible, but does not gainsay mjs's point that, when we have earlier release, we are going to have more crime.

Posted by: Bill Otis | Jun 27, 2011 7:55:45 PM


Every BOP inmate is provided an educational plan during their orientation. Each inmate decides how much or how little correctional programming they want to complete. Their experience, and the informed opinion of most practitioners, is that rehabilitation can not be coerced.

Posted by: mjs | Jun 27, 2011 7:58:07 PM

Bill (and to some extent mjs), you miss astute points made by others when you stress that "the bottom line is that early release means more crime. More crime means more crime victims, with the human suffering and financial costs crime creates."

First, if/when "more crime" involves merely repeat drug crimes committed by those released early, it is not clear that there are more victims (or even more crime if, in the absence of the old crack offenders, we still have new offenders entering the market to keep drug crime essentially unchanged). In addition, again if/when we are dealing principally with drug offenses, there may be more "human suffering and financial costs" caused by prohibition than by letting 30% of early released offenders go back into the drug trade. (This is why ending drug prohibition now --- just as we ended alcohol prohibition in the 1930s --- seems so appealing to so many libertarian-leaning types like me.)

Second, even if 30% of older crack offenders that are released early commit crimes again, 70% released early do not and in so doing escape the "human suffering and financial costs" (AND deprivation of liberty) from their continued incarceration. And, unlike the somewhat speculative (and perhaps avoidable) harms/costs of the 30% "bad early released folks" returning to the drug trade, the harms/costs of the continued incarceration of the 70% "good early released folks" is certain.

I surmise that you are not so troubled by the harm/cost for the the 70% good who could be released safely, while you are greatly bothered by the harm/cost that the 30% bad will produce. And I suspect this is because you are less troubled by harms imposed on "those guilty crack offenders." (To his credit, federalist candidly admitted in a similar debate over Plata that he cared much less about the harms surely suffered by those in prison than by the harms to be possibly inflicted by those released early.)

Again, Bill, I make these points not to assail you as much as to defend those you are eager to attack: I do not think your opponents fail to do cost-benefit analysis as much as you fail to understand that they see considerable benefits (which are in your apparent blind spot) from fewer in prison. Indeed, as the Right on Crime folks now properly stress and has been the reality the last few years in Texas and NY and elsewhere, if prison reductions are done well/right, sometimes was can have the benefits of fewer in prison AND the benefits of less crime.

In other words, when you readily assert that "the bottom line is that early release means more crime," you really readily show an affinity for a pro-incarceration mindset and blind spot concerning data that suggests another bottom line is possible. And in a country that, in Lincoln's words, was "conceived in liberty," I am eager to aspire to achieve a bottom line that get us the lowest possible crime rate along with the lowest possible incarceration rates.

Posted by: Doug B. | Jun 27, 2011 9:36:46 PM

Recidivism depends on what actions have been determined to be illegal. If prohibition had not been repealed, but instead the sentences for violation became longer and longer we would have a much higher % of citizens incarcerated. I'm sure there would be a
high % of recidivism. That is the problem with marijuana not to mention other drug criminalization.

It is not a true designation to say that drug law reform is only an interest for the left. How do you explain Cato institute, Reason Foundation, and National Review pushing for drug legalization and sentencing reform. To many, it is personal liberty as well as fiscal responsibility that carries the day.

Perhaps those who fear drug reform and sentencing reform on the right and the left oppose it because they are themselves more fearful. Perhaps it has something to do with their trust and even more profoundly deep belief about human nature and the basic instincts of human kind.

Judgement and redemption are not part of my expertice -- so I must say --I'm way out on a limb, but this serious problem of personal libery and social control deserves to be part of the dialogue.

Posted by: beth | Jun 27, 2011 10:52:49 PM

Doug --

Your intelligent idealism is one of the main attractions of this blog. I too have my version of idealism, but it's different.

Again, I won't say a whole lot in this comment, using the unfortunately accurate excuse that I'm somewhat blogged out at 11 pm.

You're very likely right that bringing guilty and dangerous people to book, and prison, counts more with me than liberty in the abstract. One reason for this is that day-to-day liberty for the massive majority who do NOT commit federal felonies, but whose lives are injured by those who do, will be more wholesome and fulfilling the fewer crack dealers they run into.

When the 70% non-recidivists who committed these offenses did so, they assumed the risk of the adverse consequences then in effect. The same of course could not be said of crime victims, past, present or (more to the point) future. Thus, for reasons of equity, I do indeed place a higher value on avoiding the preventable crime that the 30% have in store than on the lowering of pre-existing and legal sentences on the 70%.

I am of course using these figures because they're what we have. But I doubt they're correct. As SC points out, most crime in our country is never prosecuted. The recidivism figures refer only to recidivists who get caught. But that isn't even close to the real world amount of recidivist crime that gets committed, and that also figures into my cost/benefit analysis.

One of the central thoughts that underlay my career path was that criminals have a choice but victims don't. That is the basic reason that I am, as you correctly suspect, sympathetic to federalist's general worldview.

I might use this occasion to note that I am not as uniformly antagonistic to prison release plans as I might sometimes appear; I do a lot of fighting what I view as the excess enthusiasm of many commenters. Our country has overspent on every domestic program in sight. We bought more of everything, including security, than we could afford.

That's a harsh thing to say, but it's true. We are in over our heads. Spending is going to have to be cut back and it's going to hurt. This is going to affect incarceration, cops and prosecutors. It's also going to affect rehab programs, re-entry, vocational training, counseling, PD offices, you name it. Yet, in a blog about Sentencing Law and Policy, not a single commenter, save I think beth, has ever so much as acknowledged, much less urged, that the latter also be subject to cuts.

We are all going to have to look for where, at the margins, we can cut back with the least amout of damage. If Texas and NY can shed some light, all the better. But the problem I detect is that there's the hand of ideology in the glove of cost-consciousness, which makes we wary.

Posted by: Bill Otis | Jun 27, 2011 11:03:00 PM


I do not relish taking the "nattering nabob of negativism " position but your breezy description of the "70% good early release folks" cries out for a dose of reality from one who was in the trenches.

The 70% who are not considered recidivists does not mean they have become gainfully employed, pro-social, members of the community. Many have been rearrested, some multiple times, and remain in the community pending final disposition of the criminal charges. For a number of practical reasons, many federal judges are loathe to take immediate revocation action while charges are pending (assuming no other provable violations of release). Another segment of the "good early release folks" are: 1) not gainfully employed (most not interested in minimum wage employment or highly structured job training programs); 2)residing with "new girl friends" rather than the mother of their children-child support goes wanting; 3)openly hostile or passive/aggressive with regard to even minimal payments regarding conditions of release such as fines and restitution to victims of their crimes.

Unfortunately, the segment of your "good early release folks" who are committed to real change in their behaviour and have the discipline to see it through is disturbingly small.

Posted by: mjs | Jun 27, 2011 11:10:42 PM

beth --

OK, I'll stay up another five minutes, just to say this. There is some chance marijuana might be federally legalized, although not for years. The harder drugs -- ain't gonna happen. I have debated at a number of law schools on this subject, and the legalizers head for the hills when I mention crack, turning quickly back to pot.

Posted by: Bill Otis | Jun 27, 2011 11:13:32 PM

You're right Bill. It's time for bed, but you must see the debate in North Carolina between the Republican Primary candidates. Ron Paul said that he would legalize heroin and got a hugh round of applause in this conservative southern venue.

Posted by: beth | Jun 28, 2011 12:42:30 AM

beth --

Ron Paul has what amounts to a cult following, resulting in adoring audiences wherever he speaks. Strict libertarianism has a strong, idealistic theme in it, and it resonates with some Republicans especially now, in the face of the explosive growth in the size, expense and controlling quality of government.

Legalizing heroin will fly with a Ron Paul audience, but is so much of a lost cause with the general population that I don't even think it's been polled (although I'm about to start looking on Google).

Posted by: Bill Otis | Jun 28, 2011 10:25:14 AM

Yes, but this audience was there for the debate of all the Republican candidates, it wasn't a Ron Paul rally where that would be expected.

Posted by: beth | Jun 28, 2011 10:31:35 AM

beth --

As promised, I did Google the question. Here's what I found, at this site:


I quote below the relevant paragraphs:

"Last week, as Stop The Drug War noted, "A national Angus-Reid poll (pdf link) released Wednesday has found majority support for legalizing marijuana, with 52% of respondents saying they wanted to free the weed. That figure includes 59% of independents and 57% of Democrats, but only 38% of Republicans."

"The 52% figure is almost identical to a December Angus-Reid poll that found support at 53%. The difference is within the statistical margin of error. But the Angus-Reid polling finds higher support than most recent polls, which show support nationwide for legalization somewhere in the forties.

"Support for legalizing any other drugs was dramatically lower, with only 10% supporting legalizing Ecstasy, and only single-digit support for legalizing heroin, cocaine, or methamphetamine. The high levels of opposition to drug legalization cut across party lines."

When support for heroin, cocaine and meth is in the "single digits," they will remain illegal for as long as the eye can see.

Posted by: Bill Otis | Jun 28, 2011 10:56:46 AM

I am on a judicial district advisory board for community based correction in Iowa.

The minority of admissions to prison are new admissions of residents and nonresidents where the majority of admissions are of former prison inmates.

The types of prison releases are
1) Transfer to a residential facility
2) Transfer to another state prison or a federal (mostly females) prison.
3) Re-sentencing (incarceration to probation)
4) Parole
5) Expiration of sentence
6) Escapes (mostly from residential facilities)
7) Death in prison.

The lowest risk policy is for all inmates to die in prison. If there were no prison releases the Iowa prison population would double in 18 months and after about ten years about 95% of the state budget would be for incarceration. Education and human services would have to be slashed to provide funds for incarceration. We have to do risk management to keep the costs within reasonable limits. Risk management is not perfect and some of the failures are horrifying.

Legalization of MJ would make a noticeable difference in the Iowa jail population but not much difference in the Iowa prison population. Local circumstances are very important and what is true in Iowa may be true in Nebraska but false in Illinois.

Posted by: John Neff | Jun 28, 2011 11:53:20 AM

I wish more government actors were able to admit that they worked in institutions that are "fallible." In my work (defense counsel) I see an an insistence that the conclusions of investigators and prosecutors are absolutely correct as part of the culture of the law enforcement community. Frequently attempts to point to flaws in the conclusions are dismissed as "smoke and mirrors" and "fishing expeditions." Look at the history of convictions of the actually innocent (maybe not common, but certainly significant). How often did the prosecutorial community reflexively oppose any suggestion of a wrongful conviction resist the challenge until irrefutable evidence emerged.
I have no problem punishing bad actors and there are certainly people who deserve the long terms they are serving. I've represented some.
However the confirmation bias in law enforcement and prosecitors is a dangerous mindset.

Posted by: Bryan Gates | Jun 28, 2011 11:58:44 AM

Bryan Gates --

No systematic undertaking of human beings is infallible. I believe the reason the actors become dug in, prosecution and defense, is because of the adversarial/hand combat nature of the enterprise. Things are made worse by the client-uber-alles ethos of the profession, in which counsel are, shall we say, not encouraged to cast a skeptical eye toward the client, even when the client's story and demeanore are virtually begging for it.

There are occasional errorneous convictions, as there are erroneous acquittals. Each produces injustice, and in the latter case, it can, depending on the defendant, produce future danger as well.

The question, as I posed it in my original piece, is how we balance the risks of error, and what alternative systems would reduce that risk.

I agree that the cops not getting dug in early in possibly problematic cases is one place to start. I would ask you to consider, though, whether that would be more likely to happen if those on the other side were more frequently able to admit their own fallibility.

Calling the cops thugs and fascists is almost always incorrect (and insulting), and it's certain to be counterproductive.

Posted by: Bill Otis | Jun 28, 2011 12:24:51 PM


'Every BOP inmate is provided an educational plan during their orientation. Each inmate decides how much or how little correctional programming they want to complete. Their experience, and the informed opinion of most practitioners, is that rehabilitation can not be coerced.'

That may be true but offerings are slim at best and offering GEDs as part of an 'educational plan' caters to the lowest denominator and provides nothing for the segment that are capable of much more.

Posted by: james | Jun 28, 2011 2:24:51 PM

james --

I know an ex-inmate, a guy who as a young man had a chip on his shoulder and always something to prove. He got in a fistfight with a state trooper and did six months in state prison. This was years ago, in a rural state. I'd be shocked if there was any rehab or education program whatever.

Today he has a small but successful construction business and has put two kids through college. The reason he succeeded had nothing to do with what the state gave him or failed to give him. It was that he learned a lesson about curbing his temper, has basically a good heart, and is as honest as they come.

It's not up to the state. It's up to the individual.

Posted by: Bill Otis | Jun 28, 2011 3:53:02 PM

As regards Bill Otis, I must say that he had been a prosecutor far too long. I am afraid that that influences his rationale; but that is okay. Having said that, I really do believe that we do need people like Bill Otis, who are sensible, articulate, passionate, and yes, sometimes – as we all are – fallible! Differences of opinions are what make our country really great!

At the outset, I would like to start with a caveat emptor: I do not have all the answers and I am only just thinking aloud. Having dispensed with the caveat, I am now going to use drugs only as an example to address Bill Otis’s posting. It appears to me that he has something totally against drugs. (I have NEVER, EVER done any type of illegal drug in my life; so please do not think even for a second that I am a drug-crazed maniac, who is ranting and raving on this blog. I simply ask that the readers consider my random thoughts, as from a person who has not a dog in the “fight” fairly and meaningfully.) I was (and still am) under the impression that we are a capitalist country. (Or did we switch to communism, while I was somehow unwittingly playing Rip Van Winkle?) Now drugs are being “traded,” because there is a demand for it and there is a concomitant supply side. Somebody wants to use, somebody else wants to cater it. It is strictly a business deal. Who are we, as a government, what a person wants to do with one’s own body? (As we all know, what we do with our body is Constitutionally protected, as it SHOULD be.)

Bill Otis speaks of costs of legalization of drugs. FACTS (not the so-called truth that is subject to one’s interpretation and manipulation) prove that legalization of drugs actually reduce the societal costs – economically and otherwise. One has to only look to Amsterdam and Portugal for this evidence. I understand that people may get addicted, but the sheer supposition is not evidence of increased costs. I am from Missouri; so show me. (Actually, I am a Native Texan!) In any event, the cost of drug education and treatment (in my opinion) will be far, far less than costs of incarceration and other forms of retribution. A classic example of “what is forbidden becomes even more sought after” is the Prohibition of intoxicants in the early part of the 20th century. What happened? Al Capone and his ilk had a field day raking in huge sums of money, while literally mowing down people – innocent bystanders and his competitors alike without any thought to the consequences. Ultimately, the Government capitulated and legalized alcohol. Now, I have not seen a dramatic surge in the alcohol-addiction rates, or societal costs since then. Government has a FUNDAMENTAL problem; i. e, it somehow thinks that it needs to be a guardian to all people at all times, regardless of the circumstances and costs. (Perhaps it has missed the unmistakable plebiscite: Butt out of people’s lives!) I strongly believe in the “real” democratic ideal of “laissez-faire.”

Bill Otis (and others, also) speak of the “recidivism rates.” Again, why do addicts recidivate? That should be our more immediate question, rather than “why are these people being released?” Ask yourself: Were the drugs “legal,” then would we have the putative problem with relapse and concomitant commission of crimes? (I do not see a similar statistically-significant issue with alcohol.) We can also discuss cigarettes, which kill more people that drugs and alcohol combined (currently anyway), but we shall save it for another day.

On the subject of treatment programs, the BOP’s programs are nothing more than a scam. (It has success rate of about 25%.) The money would be better spent on private drig-treatment programs, which are better equipped and more attuned to the individual addict’s needs. James is on point about the educational programs at BOP. BOP’s primary goal is to make money with the Federal Prison Industries (AKA Unicor) – that makes about $1-1.2 billion a year. That is a disgrace, because we went after Hitler and the Nazis for Concentration Camps. I am not sure how BOP’s labor practices are any different from those of the Nazis’.

Food for thought: George Washington, whom many of us adore, was a pot-grower. Was he an addict? Was he indicted and convicted? Was he a felon? Could he have been the President in the today’s world?

I do not know if we should legalize all the drugs at one fell swoop, but I do feel that eventually they are all going to be legalized – and rightly so! As a first step in the right direction, let us start with doing away with the meaningless distinction between crack and cocaine. That part of the law is absolutely unconscionable, to say the least!

Anyway, this and pardons and commutations are topics for another day! (Libby is a scumbag – who has never earned a hard day’s living – in my opinion, for compromising Valerie Plame’s identity, who was serving our country (read: national security) by all accounts valiantly. Did his sentence deserve to be commuted? Yes, I think so, certainly not because his crime was harmless (just ask all the dead soldier’s families if it was harmful, or harmless), but only because he was the fall guy for Cheney and Bush’s unlawful policies.

Yes, Bill, it is up to an individual to shape up, or not. Also, that individual’s family (read: environment) plays a crucial role in how that individual turns out. While you come across as a hardnosed conservative, I feel that you may be no different from the rest of people! Ultimately, it is the circumstances that should govern the crimes and their consequences. (Pun intended!)

Lastly, Doug and Bill (and all others), as the Xerox adman of yesteryear said on the Xerox TV commercial: “Keep the conversation going!” I am learning something new from you guys everyday.

Now, it is time to sign out to continue with my “lawyering” so that I can assist more defendants from being unjustly convicted and detainees from being unjustly incarcerated.

Posted by: John Marshall | Jun 28, 2011 4:42:50 PM

'did six months in state prison.'

Sorry Bill and with all due respect, 6 months is little more than chump change. When you start talking years of dead time with few resources other than token or basic educational resources availabe, that's a waste that provides neither society, the justice system nor the individual a benefit. I have no problem with those that choose to partake in sham 'educational courses' for no other reason than to overcome the extreme boredom that coincides with incarceration but to call these limited opportunities educational experiences is a stretch at best. I understand that imprisonement is punishment but why let an individual stagnate when they will hopefully have the opportunity to contibute once again upon release.

'Today he has a small but successful construction business and has put two kids through college.'

That is a great personal accomplishment that this individual accomplished on his own but what additional opportunities might he have had without the added hinderance of being blackballed by a conviction that has most likely continued to follow him around like a relentless 'ball and chain' his entire life.

Posted by: james | Jun 28, 2011 6:45:01 PM

In federal prison many educational courses are taught by inmates themselves. This includes English, Writing, money management, construction and even GED. They often develop the ciriculum themselves.

Also in the Federal system many prisoners who have never been addicted to drugs take drug treatment classes, not for amusement, but because it gives them "points" toward a lesser security level. This is especialy true of prisoners serving time in high security facilities, not because they are dangerous, or have any violence in their past, but because of the length of their sentence.

Posted by: beth | Jun 28, 2011 7:56:13 PM


Yes, many of the courses are taught by the inmates themselves. These courses are terrible - for the most part. Also, please do not forget the fact that the drug-treatment programs give the inmates the eligibility to get as much as 12 months off their sentence of imprisonment! In fact, many of the inmates fail the drug test just to get the "positive" test on their PSIs. A lot of the inmates do not have ANY history of drug abuse prior to their being indicted, or otherwise charged. Go figure! Twelve months provide a very strong incentive to lie, cheat, and basically abuse the system, while the people who actually need the "treatment" do not even get it! (I do not mean to say that the RDAP program is any good.) Do you not think?

Posted by: John Marshall | Jun 28, 2011 9:59:08 PM

John Marshall --

"...we do need people like Bill Otis, who are sensible, articulate, passionate, and yes, sometimes – as we all are – fallible!"

Thank you for your comment, but I would make one change. I am not sometimes fallible. I am always fallible (though occasionally right).

I enjoy reading your posts, and I hope you'll stick around.

Posted by: Bill Otis | Jun 28, 2011 10:19:14 PM


Bil, now I can add a couple of more adjectives about you - self-deprecating and self-effacing! Why, thank you, sir! I do hope to stick around, at least for the valuable lessons that I am learning thanks to Doug, you, and many others on this blog.


I neglected to add one more thing about the eligibility for the RDAP program in the Federal system. That is, if an inmate has even a mere possession (even if that inmate is charged with just conspiracy - say 18 USC §371, or 21 USC §846, or the like) of a weapon (e. g., a gun), that inmate does not get into the RDAP program, despite the fact that he/she may be terrible addict. What a shame! The unfortunate thing is that many of those "inelegibles" are from the minority groups and crack dealers. The sad part of that also is that numerous (I means really numerous) "white-collar" guys get into the RDAP programs, because they have rabbis to pick up the phone and call (and blandish, blarney, coax, cajole, wheedle, and otherwise bribe) the BOP Regional Medical Director, or even the National Coordinator! So much for the incorruptible system that we proudly boast to have!

Posted by: John Marshall | Jun 28, 2011 11:05:39 PM

For the left to compare advocacy of the release of Libby Scooter to that of a LA gangbanger drug dealer makes them look insincere. One was convicted of a bogus malum prohibitum. The gangbanger is a small natural disaster wherever he will go. He will personally raise the local real crime rate, personally drop real estate values for blocks around. He will personally generate massive health costs in trauma care. And, most telling of all, personally raise government worker employment for lawyers. That is why no one may touch or in any way inconvenience this illegal alien gangbanger. The latter will have the full protection of the feminist lawyer and its male running dogs when it tries to drive out black people from a town, because feminism has racist origins.

Because the facts abandoned the Left 100 years ago, all that remains, even in ever so civil academia are personal remarks. The remarks are the hallmark of frustration in the traverse. There is no inconsistency in advocating the release of Libby Scooter and opposing the unsafe and irresponsible release of ultra-violent offenders (no matter that their fictitious adjudicated charges are non-violent).

Posted by: Supremacy Claus | Jun 29, 2011 4:16:17 AM

The always entertaining Bill Otis strikes again with an another absolutely fantastic parody of the right wing brain. He absolutely nailed the right wing insecurity and paranoia of constantly thinking they are under attack by the shadowy forces of "the Left" who dominate everything even though by all rational measures "the Left" is absolutely powerless. He lists all of the weaknesses of right wing thinking, but of course, attributes them again to "the Left" - including their biggest weakness which is the belief that you can get something for nothing which explains the past 30 years of Republican fiscal policy. He goes to the default right wing positioning of saying that anyone who disagrees with them is "the Left" as if that is the biggest insult around. And when someone dares to be proud to be "the Left" he instantly calls them Anti-American. The binary thinking of the right wing mind which presents a black and white world is on full display in Bill's post - there can be no legitimate criticism of the death penalty or the drug war - anyone who does so must be motivated by illegitimate motives. Thus, if you oppose the death penalty - or even if you are concerned that with our imperfect justice system its possible an innocent person has been or could be killed, you obviously support giving convicted murderers a pat on the head and a lollypop and telling them not to kill anyone else. If you support the legalization of marijuana you support distributing heroin in nursey schools. And of course, there is the perpetual victimhood of the right - thus, Scooter Libby and the Duke Lacrosse team are the only people to have ever been victimized by the overreaching criminal justice system. Of course, Duke Lacrosse also says that forget women and minorities, it is privileged White males who are the real victims of society. Privileged White males only control the vast majority of the media, wealth, and government - they are no match for the shadowy Leftist caball that never seems to manifest itself in any visible form. And of course, he proves how White males cannot get a break in this world, after all, people keep saying that he is rich even though he obviously is not - after all, while he Winters in Hawaii, he cannot afford to Summer on Martha's Vinyard. And some people have the nerve to say that maybe he should pay a small percentage more in taxes to pay for the cost of the Drug War and the death penalty that he promotes so vigourously - what sort of Communist or Socialist idea is it that people who advocate costly government programs should have to pay for them. Don't you know that by cutting taxes for the rich you create a rising tide that raises all yatches?

In short, Bill does and represents exactly what he accuses "the Left" of - he is simply the mirror image of the shadowy leftist that he fights in his head. Bravo Bill, you really nailed how pathetic the modern Right is :P

Oh, wait you mean he's serious??? Bill, you're a smart guy who has been able to enjoy a lifestyle that an estimated 99% of the world can only dream of. Plus, as you yourself often point out - yet another contradictory aspect of the right wing brain - your side is winning - I can assure you that nobody under the age of 30 can remember a time when the Right has not controlled virtually every aspect of government. Try enjoying life and not worrying so much ;)

ginny :)

Posted by: virginia | Jun 29, 2011 7:44:20 AM

ginny --

I cannot but let your post speak for itself. "Over the top" hardly does it justice.

Incidentally, the Democratic Party has controlled both Houses of Congress for the bulk of the last 30 years, not to mention in the Sixties and Seventies, where the now runaway welfare state got its start.

Just one factual correction: I could easily spend the summers on Martha's Vineyard, but prefer to spend them at my family's home on Pawleys Island, SC. The political environment is more congenial, and the ocean warmer. Come for a visit!

Posted by: Bill Otis | Jun 29, 2011 9:14:11 AM


I totally agree with you on drugs and death penalty and I have posted my views - based on what is my currently best understanding - elsewhere on this blog. I do not understand why someone has to branded "Left," or 'Right." I do not, for one, think that any one person could be TOTALLY "Left," or "Right" all the time. These labels are just misleading and much too broad to be meaningful. Perhaps, Bill Otis is only a human being and is as conflicted as anyone else as to what is good for the society and what should be done to achieve that. I can honestly tell you that I am neither "Left," nor "Right." My position on any subject depends on what I - correctly or mistakenly - think what it should be. I am, inter alia, a extremely pro individual rights; totally against death penalty; pro legalization of drugs. What does make me? Ginny, you DO seem to have understood that Bill Otis is experiencing (as we all are) these conflicts, too.

Over the years, I have met a few STS (i. e., Navy's Seal Team Six) members, who were incredibly patriotic and gung ho - in fact, so patriotic that one would immediately misconstrue them as right-wingers - but at the same time very left-oriented and empathetic on numerous issues. When I asked them why they were both, what they told me affected me profoundly. They told me that they were bound by a sense of honor and of duty to their country (that is, ours); yet, they were also - FUNDAMENTALLY - bound by what their conscience tells them. Therein lies the conflict! This is also the reason why I am classified as "Not affiliated" by the Commonwealth of Pennsylvania (where I reside) as a registered voter. Each time I vote, I vote for the candidate and what he/she stands for. I refuse to be a Democrat, nor to be a Republican, all the time. I do not need the negligible benefits that these labels confer (e.g., at least in Pennsylvania, the eligibility to vote in the primary elections) on me for the sake of my being branded either.

Lastly, Ginny, you come across as a very smart person, too. I just hope that you do not get turned off by these lables so we can meaningfully polemicize without these labels, which again are misleading at best and actually distract from crux of the problem!

Now, I get off my soapbox!

Posted by: John Marshall | Jun 29, 2011 1:37:41 PM

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